Cyclists

Posted on Sep 8, 2016 11:15am PDT

In the summer months, cycling is a fun, healthy and inexpensive alternative
to driving. Cyclists must be cautious as they face many risks on the road.
Even while wearing the appropriate safety gear, the injuries to a cyclist
struck by a vehicle can be extremely significant.

It is important for every cyclist to understand their rights and to know
where they can receive assistance in case of an accident.

Unlike motor vehicle drivers, cyclists are not required to have insurance
to cover their bicycles and actions. Despite this, cyclists are not without
legal recourse in the event of injury. In the event of a collision with
a vehicle, a cyclist is given significant legal protection and multiple
avenues to ensure they can seek appropriate compensation for their injuries.

While each person’s situation is unique, the general rule is that
in a collision with a vehicle, an injured cyclist
can receive compensation from one of the following means:

the insurance of the car involved in the crash;

the cyclist’s own car insurance, or the car insurance of their spouse,
or someone on whom they are dependent; or,

the Ontario Motor Vehicle Accident Claims Fund.

Claim for Compensation

A cyclist injured by a vehicle can sue the driver and owner of the vehicle
for compensation in the form of monetary damages. If a claim against the
driver is commenced, their insurance company will respond and cover the
driver up to the policy limit.

The
Highway Traffic Act imposes a reverse onus on a driver whose vehicle collides with a cyclist.
In an accident involving a cyclist, it is the responsibility of the driver
of the car to first prove that the collision did not arise from the driver’s
negligence or improper conduct. This is different from a typical claim,
where it is the injured person’s responsibility to demonstrate that
someone else is responsible for their injury.

In a situation where the at-fault driver does not have insurance or if
it is a hit-and-run accident, a cyclist can have their damages covered
by their own auto insurance or the auto insurance of their spouse (or
parents if the cyclist is a dependent), if that insurance includes the standard
Family Protection Coverage OPCF-44R provision.

Subject to certain restrictions under the Insurance Act, the cyclist can
sue the driver and owner of a vehicle for potential damages (compensation)
that include the following:

Pain and suffering, loss of enjoyment of life, and loss of amenities;

Past and future loss of income or earning capacity;

Loss of household and handyperson capacity;

Future cost of care; and

Certain out of pocket expenses not paid by the no fault benefit insurance company.

The damages are to compensate the cyclist for the harms and losses that
the negligent vehicle driver caused.

In a collision where the cyclist is not wearing a helmet, a cyclist can
still obtain benefits or sue the driver for causing them injury. The defendant
may, however, try to prove that the cyclist’s injuries would be
lessened if they had been wearing a helmet.

In the event that none of the above situations apply, a last resort for
damages can be found through the Ontario Motor Vehicle Accident Claims
Fund. A cyclist can make a claim to the Ontario Motor Vehicle Accident
Claims Fund, but only to a maximum of $200,000 in compensation.

If there is a hit-and-run that causes injuries, a cyclist should do their
best in getting the license plate number, or having a witness around that
can support the police report. A cyclist with proof of a hit and run can
make a claim under the Motor Vehicle Accident Claim Fund. A cyclist should
get an ambulance or go to a hospital themselves to get a doctor's
report as evidence. Always keep this in mind and get checked out by paramedics.

The City’s duty to cyclists

It is also important to note that the City owes a duty to cyclists to provide
Safe Passage. The Ontario Court of Appeal has recognized that roadways
are to be used by cars and cyclists equally. Under
s.44 of the
Municipalities Act2001, the City is responsible to keep roadways in a state of repair, and they
must ensure that the road is “kept in such a reasonable state of
repair that those requiring to use it may, exercising ordinary care, travel
upon it with safety”.

This standard of care has been recognized as the law in Ontario by the
Court of Appeal in
Johnson v. Milton (Town). The state of repair includes “any aspect of the road and its environs”
including “the surface of the road, alignment of the road, obstacles
on the side of the road and signage.”

Our courts have held various municipalities responsible for failing to
live up to their duty to cyclists. These include: failure to erect proper
signage, failure to maintain proper surface and unsafe railway tracks
on the street.

To be successful in an action for damages in connection with accident on
a municipal highway, that onus is on the cyclist to prove, on a balance
of probabilities, that:

1. That the road was in a state of disrepair at the time of the accident; and

If these elements are met, the onus shifts to the municipality to establish
that the condition of non-repair existed notwithstanding all reasonable
efforts on the part of the municipality.

Time limits for a potential claim against the City require fast action.
An injured party must give the City Clerk written notice of a potential
claim within 7 days. Immediate contact should be made with a lawyer to
get the notice in.

Insurance Benefits

A claim for insurance benefits is different than a claim for damages (compensation).
A cyclist has the option of making a claim for no-fault benefits. A cyclist
is entitled to benefits, regardless of who is at fault for the collision.

When a rider is struck and injured by a car, regardless of fault, the rider
is entitled to make a claim for automobile insurance benefits.

The types of accident benefits available include weekly benefits which
address a variety of personal circumstances:

Income replacement benefits for employed and self-employed individuals;

Non-earner benefits for students, individuals who are not gainfully employed,
retired people, etc.; and

Caregiver benefits for individuals who provide care to family members.

Other types of accident benefits available include benefits for medical
and rehabilitation care, lost income, lost education, visitor expenses,
housekeeping and home maintenance benefits, or attendant care.

If a cyclist is hurt, but not working, they can receive non-earner benefits.
As well, if the cyclist’s injuries impact their ability to look
after their children, the cyclist can also elect to claim a caregiver benefit.

An injured cyclist is entitled to receive medical and rehabilitation benefits
for expenses which are not covered by OHIP or other health or disability plans.

The benefits available will depend on a number of factors including:

The seriousness of the injury suffered, with the types of injuries ranging
from a “minor injury” to “catastrophic impairment”;

The residual effects of the injuries suffered and their impact on the injured
person’s function over time; and

Enhanced medical/rehabilitation and attendant care benefits (increasing
the benefits available under each category by $1,000,000 for a total of
$2,000,000 of additional coverage); and

Indexation for benefits which are otherwise paid in a fixed amount.

Who pays the benefits depends on the circumstances of the accident.

No-fault benefits can be obtained through a cyclist’s insurer, if
the cyclist has auto insurance. This can involve any policy of auto insurance
under which the cyclist is a listed driver, or a spouse’s insurance,
or the insurance of anyone the cyclist might be dependent on. In the event
that the cyclist does not have auto insurance, a claim can be made through
the insurance policy of the owner of the vehicle involved in the collision.
If the at-fault driver is not insured or if it is a hit-and-run situation,
the Ontario Motor Vehicle Accident Claims Fund would be the last resort
for a claim.

General Bicycle Safety

Under the
Highway Traffic Act [HTA], the term “vehicle” includes a bicycle, which generally
means cyclists must follow the same rules of the road as other vehicles.

Section 104(2.1) states that regulation-compliant helmets are also required
on roadways or sidewalks in Ontario for those under 18 years of age. Section
104(2.2) states that parents have a responsibility to ensure their children
under the age of 16 comply with the regulation.

Section 74 requires that bicycles must be equipped with a functioning “alarm
bell, gong or horn” and sounded whenever it is reasonably necessary
to alert pedestrians.

Section 64(3) requires a rear-wheel braking system on a bicycle that will
enable the ride to make the braked wheel skid on dry, level and clean pavement.

Finally, there are also rules for cyclists about lighting and reflectors
to ensure that they are visible to other vehicles in dark conditions.
Section 62(17) requires that if cycling on a highway when it is dark or
30 minutes from dusk or dawn, a cyclist must carry a lighted lamp displaying
a white or amber light on its front and a red light or a reflector on
its rear. It is important to note that warning signal lamps, commonly
known as “four-way flashers”, that produce intermittent flashes
of red light are prohibited under section 62(14).

Conclusion

Bicycles are vehicles, and cyclists are given significant legal protection
if they are injured by a vehicle. Cyclists are provided with multiple
avenues to ensure they can seek appropriate compensation for their injuries,
whether from the at-fault driver’s insurance, their own insurance,
the municipality, or as a last resort, the Ontario Motor Vehicle Accident
Claims Fund.

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